Following that remand, the county approved
the CMP with further findings and new conditions of approval. The county imposed
a condition that postponed determination of the consistency of the CMP with its
wildlife impact mitigation standards until a later public hearing on a fully
developed wildlife mitigation plan. Petitioner appealed the remand decision to
LUBA, and LUBA affirmed the county's decision. Gould v. Deschutes County,
Or LUBA (2008). On review, petitioner makes four
assignments of error, all of which challenge LUBA's determinations as to the
legal sufficiency of the county's condition and findings postponing review of application
of the wildlife mitigation standards. We conclude that LUBA did not err in
upholding the county's conditional approval and affirm.

Our earlier opinion frames the
dispute:

"Thornburgh applied to Deschutes
County for approval of a conceptual master plan for a destination resort. The
resort, to be located on about 1,970 acres of land west of the City of Redmond,
is proposed to contain 1,425 dwelling units, including 425 units for overnight
accommodations and a 50-room hotel. The resort plans also include three golf
courses, two clubhouses, a community center, shops, and meeting and dining
facilities. The resort property is bordered on three sides by land owned by
the Bureau of Land Management. The land is zoned for exclusive farm use, but
designated "destination resort" in an overlay zone.

"State
and local law contain special standards for approving destination resort
developments. ORS 197.435 to 197.467; OAR 660-015-0000(8) (Statewide Planning
Goal 8 (Recreational Needs)); Deschutes County Code (DCC) Chapter 18.113. The
county's development code requires a three-step approval process for a
destination resort. The first step is consideration and approval of a 'conceptual
master plan' (CMP). DCC 18.113.040(A). The code sets out a number of detailed
requirements for an application for a CMP, DCC 18.113.050, as well as extensive
approval standards for the plan, DCC 18.113.060 and 18.113.070. An applicant
for a CMP must submit evidence of compliance with those requirements at a
public hearing. Any approval must be based on the record created at that
hearing. DCC 18.113.040(A). Once the CMP is approved, it becomes the standard
for staff evaluation of a 'final master plan,' the second step in the process.
Any 'substantial change' in the CMP must be reviewed and approved using the
same process as the original plan approval. DCC 18.113.080. The third
approval step for a destination resort is allowance of components or phases of
the resort through site plan or land division approvals. DCC 18.113.040(C).

"Following
review of the proposed CMP by a local hearings officer, the board of county
commissioners held hearings and approved the proposed CMP with conditions. The
primary issue in this case concerns whether the county's adopted findings and
conditions on the mitigation of the development's effects on fish and wildlife
were sufficient to justify that approval.

"The
development code requires the CMP application to include a description of the
wildlife resources of the site and the effect of the destination resort on
those resources, the 'methods employed to mitigate adverse impacts on the
resources,' and a 'proposed resource protection plan to ensure that important
natural features will be protected and maintained.' DCC 18.113.050(B)(1). The
approval criteria include a requirement that the decision-maker 'find from
substantial evidence in the record' that 'any negative impact on fish and
wildlife resources will be completely mitigated so that there is no net loss or
net degradation of the resource.' DCC 18.113.070(D)."

Gould II, 216 Or App at 153-54.

The original county findings
justified approval of the CMP because it was "feasible" to comply
with the wildlife impact mitigation standard in light of a memorandum of
understanding (MOU) between Thornburgh and the Bureau of Land Management (BLM).
The MOU obligated Thornburgh to complete a wildlife mitigation plan, obtain
approval of that plan from BLM and the Oregon Department of Fish and Wildlife,
and implement the plan throughout the project. The MOU contained specific
mitigation measures that could be undertaken as part of the plan. In the
initial review, LUBA concluded that the county's finding of feasibility of
compliance was sufficient to prove that there would be "no net loss or net
degradation of the resource" under the future resource protection plan.

"LUBA's
opinion and order was unlawful in substance for the reasons that follow.
First, the county's findings were inadequate to establish the necessary and
likely content of any wildlife impact mitigation plan. Without knowing the
specifics of any required mitigation measures, there can be no effective
evaluation of whether the project's effects on fish and wildlife resources will
be 'completely mitigated' as required by DCC 18.113.070(D). ORS 215.416(9)
requires that the county's decision approving the CMP explain 'the
justification for the decision based on the criteria, standards and facts set
forth' in the decision. The county's decision is inconsistent with ORS
215.416(9) because the decision lacks a sufficient description of the wildlife
impact mitigation plan, and justification of that plan based on the standards
in DCC 18.113.070(D). Second, that code provision requires that the content of
the mitigation plan be based on 'substantial evidence in the record,' not
evidence outside the CMP record. In this case, the particulars of the
mitigation plan were to be based on a future negotiation, and not a county
hearing process. Because LUBA's opinion and order concluded that the county's
justification was adequate despite those deficiencies, the board's decision was
'unlawful in substance.'"

Gould II, 216 Or App at 159-60.

Thus, the approval was improper
because the mitigation plan was not yet composed and part of the evidentiary
record before the county, and therefore the necessary findings about the
sufficiency of that plan could not be made. But beyond those deficiencies, we
noted that the county used the wrong standard in evaluating the sufficiency of
the evidence in the local government record to show consistency with the
approval criteria--whether the evidence showed that compliance with the
standards was "feasible."

Instead, under Meyer v. City of
Portland, 67 Or App 274, 678 P2d 741, rev den, 297 Or 82 (1984), the
evidentiary record of a land use decision must show that compliance with the
approval standards was "likely and reasonably certain," without
regard to any modification as a result of later administrative review. Gould
II, 216 Or App at 161 (citing Meyer, 67 Or App at 280 n 5). We
concluded:

"Thus,
Meyer instructs that a proposed land development plan must be specific
and certain enough to support findings that the proposal satisfies the
applicable approval criteria. If the nature of the development is uncertain,
either by omission or because its composition or design is subject to future
study and determination, and that uncertainty precludes a necessary conclusion
of consistency with the decisional standards, the application should be denied
or made more certain by appropriate conditions of approval. Another option is
to postpone the decision."

Id.

We also noted in Gould II that
proof of a mere possibility of compliance, resulting in a finding that
attainment of the standard is "feasible," could be relevant to
justify postponement of the application of the standard to a future process,
but not to extinguish the duty to apply the standard based on "substantial
evidence in the record." We stated:

"In
this case, the county's decision did not postpone a determination that the
project complies with DCC 18.113.070(D). The county might have, but did not,
postpone determination of compliance with that standard until the final master
plan approval step and infuse that process with the same participatory rights
as those allowed in the CMP approval hearing.4 Instead, the county
implicitly concluded (but did not directly find) that the nature of the
wildlife impact mitigation plan was sufficiently certain and probable to allow
a present determination of consistency with the approval criterion. LUBA found
that the findings were 'adequate' to explain compliance with DCC 18.113.070(D).

"But
the governing ordinance requires a Meyer determination of whether
'solutions to certain problems * * * are * * * likely and reasonably certain to
succeed'--whether the findings and conditions of the conceptual master plan
approval adequately support the conclusion that 'any negative impact on fish
and wildlife resources will be completely mitigated so that there is no net
loss or net degradation of the resource' as required by DCC 18.113.070(D). The
adopted findings fail to make that case.

"4 In the context
of this case, a determination that a wildlife impact mitigation plan is
'feasible' might be appropriate to justify postponement of any evaluation of
the application of DCC 18.113.070(D) to the plan. The determination of
feasibility, however, is not an adequate substitute for an assessment of
whether a specific mitigation plan actually complies with the standard."

Gould II, 216 Or App at 162.

On remand, the county approved the
CMP and adopted its prior findings, including the finding that "it is
feasible to mitigate completely any negative impact on identified fish and
wildlife resources so that there is no net loss or net degradation of the
resource." The county also found:

"[T]he
Court of Appeals clearly stated that it is proper for the County to defer the
presentation of the wildlife mitigation plan to the final master plan process,
as long as a feasibility determination has been made with respect to DCC
18.113.070(D). As noted above, based on evidence in the record, the Board
found in the 2006 Decision that compliance with DCC 18.113.070(D) is feasible.

"Consistent
with the Court of Appeals' decision, the Board adopts condition No. 26 below,
which postpones determination of compliance with DCC 18.113.070(D) until the
final master plan approval step and infuses that process with the same
participatory rights as those allowed in the CMP approval hearing."

The county imposed the following condition:

"Applicant
shall demonstrate compliance with DCC 18.113.070(D) by submitting a wildlife
mitigation plan to the County as part of its application for final master plan
approval. The County shall consider the wildlife mitigation plan at a public
hearing with the same participatory rights as those allowed in the CMP approval
hearing."

Petitioner sought review by LUBA of
the decision on remand. One of its assignments of error was that the county
erred in making a determination of "feasibility" based on inadequate
findings and evidence, so that postponement of the decision was not
appropriate. Petitioner argued that the "feasibility" showing that
was necessary to postpone a determination under DCC 18.113.070(D) meant that
Thornburgh was required to show that particular wildlife impact mitigation
measures were "likely and reasonably certain to succeed" under Meyer
and that this court had held that the county earlier failed to make that
showing. Thus, petitioner concluded that the postponement was not justified by
the county.

On review, LUBA determined that a
showing that compliance with approval standards is "likely and reasonably
certain" is not necessary in order to impose a condition postponing
consideration of those standards to a later hearing and that it was sufficient
for the county to postpone with the condition that full public participation be
preserved. LUBA held:

"For the reasons explained above, we
conclude that neither Gould II nor Paterson support petitioner's
position that the county must first find that it is 'feasible,' within the
meaning of the second principle in Meyer [approval of compliance with
standards at first stage of development review upon findings that compliance is
'feasible,' meaning 'possible, likely and reasonably certain to succeed'], for
the destination resort to comply with DCC 18.113.070(D), before it can defer a
decision concerning whether the proposed destination resort complies with DCC
18.113.070(D) to a future public process as part of FMP approval. It follows
that petitioner's first assignment of error should be denied."

Gould, Or LUBA at . LUBA affirmed the county's
deferral of consideration of the application of DCC 18.113.070(D) to the CMP.
Petitioner again seeks review.

Petitioner first argues that a
particular showing of the feasibility of compliance with DCC 18.113.070(D) was
necessary in order to postpone consideration of that approval criterion. Petitioner
claims that a showing of "feasibility" is necessary to justify
postponement of a determination of compliance with an approval standard and
that "feasibility" means the justification required by Meyer
for determining satisfaction of an approval standard--that compliance with the
standard is "likely and reasonably certain to succeed." We agree
with LUBA that a finding under Meyer (that the local government record
shows that compliance with DCC 18.113.070(D) is "likely and reasonably
certain to succeed") is not necessary to postpone consideration of
compliance with the approval standard. Rather, such a finding under Meyer
would suffice to justify final adjudication of compliance with the approval
criterion, as opposed to putting that determination off for another day.

"For
some reason, LUBA couched its discussion of this question in terms of whether
or not the city found the preliminary plan proposed a 'feasible' development
project. Petitioners argue that 'feasibility' cannot be the applicable
standard because nearly any conceivable project may be feasible from an
engineering perspective if enough money is committed to it. It is apparent,
however, that by 'feasibility' LUBA means more than feasibility from a
technical engineering perspective. It means that substantial evidence supports
findings that solutions to certain problems (for example, landslide potential)
posed by a project are possible, likely and reasonably certain to
succeed."

The county made that finding of
feasibility in justifying the condition that postponed approval of a wildlife
mitigation plan. The county found that "it is feasible to mitigate
completely any negative impact on identified fish and wildlife resources so
that there is no net loss or net degradation of the resource." That
finding is sufficient to explain the reason under ORS 215.416(9) and DCC 22.28.010(A)
why the county did not deny the application and instead approved the
application with the postponement condition.

Petitioner's third assignment of
error is that LUBA erred in affirming the postponement because the necessary feasibility
finding was not supported by substantial evidence in the record. Petitioner
again argues that the "evidence and findings on remand clearly do not
satisfy the Meyer test that solutions 'are possible, likely and
reasonably certain to succeed' where the record wasn't opened and no new
findings were made." We have already addressed the contention that LUBA
erred in failing to require a Meyer finding of compliance with DCC
18.113.070(D) in order to justify conditional approval of the CMP. Thus,
petitioner's complaint about lack of substantial evidence to support a Meyer
finding is misplaced. If petitioner is arguing that the county's actual
feasibility finding, which is necessary to justify conditional approval,
is not supported by substantial evidence, that argument is unpersuasive. That
finding was supported by substantial evidence in the record for the reasons
stated by LUBA in Gould I. 54 Or LUBA at 259-60. Thus, the county's
decision to conditionally approve the CMP, rather than deny the CMP application
for failure to satisfy DCC 18.113.070(D), complied with ORS 215.416(9) and DCC
22.28.010.

Petitioner's first assignment of
error is that LUBA's order was "unlawful in substance because it affirmed
the County readoption of the CMP final land use decision where there was not
substantial evidence to determine compliance with the mandatory fish and
wildlife approval standards." As we interpret that assignment of error,
it raises the same issues as those that were raised in the second and third
assignments of error.

LUBA did not err in affirming the
county's decision on remand.

Affirmed.

1.ORS 197.850(9)
provides the standard of review used by the Court of Appeals in reviewing a
LUBA decision:

"The court may affirm, reverse or remand
the order. The court shall reverse or remand the order only if it finds:

"(a) The order to be unlawful in substance
or procedure, but error in procedure shall not be cause for reversal or remand
unless the court shall find that substantial rights of the petitioner were
prejudiced thereby;

"(b) The order to be unconstitutional; or

"(c) The order is not supported by
substantial evidence in the whole record as to facts found by the board under
ORS 197.835(2)."

2.Petitioner's
fourth assignment of error--that the postponement of consideration of the fish
and wildlife standard to a later hearing will not assure that the standard is
met--does not merit discussion. The condition plainly requires that petitioner
"demonstrate compliance with DCC 18.13.070(D)" and that the county
consider and evaluate that demonstration.

3.Analysis
of that issue is made more difficult by the imprecise use of the word
"feasible" by the board and the county. The ordinary meaning of
"feasible" is "capable of being done, executed, or effected :
possible of realization." Webster's Third New Int'l Dictionary 831
(unabridged ed 2002). When we speak of a determination that compliance with a
standard is "feasible," we mean the ordinary meaning of the
word--that attainment of the approval standard is possible-- and not that
attainment of the standard is probable or certain.

"Approval or denial of a permit or
expedited land division shall be based upon and accompanied by a brief
statement that explains the criteria and standards considered relevant to the
decision, states the facts relied upon in rendering the decision and explains
the justification for the decision based on the criteria, standards and facts
set forth."

That justification is also required by a county ordinance on
land use hearing procedures, DCC 22.28.010. DCC 22.28.010(A) provides that
"[a]pproval or denial of a land use action shall be based upon and
accompanied by a brief statement that explains the criteria and standards
considered relevant to the decision, states the facts relied upon in rendering
the decision and explains the justification for the decision based upon the
criteria standards and facts set forth."